The ruling coalition parties in Armenia’s parliament have started decriminalization of libel and insult provisions in an attempt to regulate relations between media and public officials. The amendments to the Criminal and Civil Codes, passed in the first reading on March 18, abolish criminal liability for defamatory statements and set pecuniary compensation for victims of libel and insult. If passed, Armenia will join only a small number of countries in wider Europe that had decriminalized defamation – Bosnia and Herzegovina, Cyprus, Estonia, Georgia, Moldova, Ukraine and the UK. The amendments place the burden of proof on the defendant, stipulating its transfer to the plaintiff if unreasonable efforts are required to prove the truth by the defendant. The highest fine that can be imposed by courts on media outlets for disseminating defamatory information is 2000 times the minimum salary - around US$ 5,000.

The amendments already received a largely positive assessment from the Council of Europe. A complete decriminalization of libel and repeal of Article 318 of the Criminal Code which sets out the offence of “insulting a representative of the public authorities” has been long demanded by the Parliamentary Assembly of the Council of Europe that monitors democratic reforms in Armenia.

Despite the fact that journalists would be the primary beneficiaries, the amendments have raised concerns among media professionals who fear the authorities are trying to use progressive legislation to tighten control over media. Instituting criminal proceedings against journalists for libel and insult can invite sharp international criticism, the opponents of the amendments argue. Therefore, the authorities may consider civil proceedings as a safer action to silence undesirable media. These arguments were voiced once again at the hearings on April 9 organized at the National Assembly. Main concerns expressed were the lack of clear mechanisms for implementation, a high degree of discretion given to the courts, the size of fines considered incommensurate with financial capacities of especially the print and internet media, and finally distrust towards the judiciary.

The last point seems to be the most valid concern. The flaws in Armenia’s court system once again came to the fore with the release on March 8, 2010, of the OSCE/ODIHR trial monitoring report on the cases of opposition supporters after the post-election violence in Yerevan on March 1-2, 2008. The report revealed serious shortcomings regarding the equality before the law, and the tendency of judges to display “openly friendly attitudes towards the prosecution and openly hostile attitudes towards the defense”.

The concern about disproportionately high fines that can threaten the existence of media outlets, on the other hand, still needs further substantiation. Against the example of recent developments in Kazakhstan where the court imposed a US$ 400,000 fine on Respublika newspaper, and Tajikistan where libel charges were pressed against three newspapers claiming more than US$ 1.2 million in damages, Armenia has little experience in civil libel proceedings and lacks a reasonable number of cases that could justify the fear of abuse. Nevertheless, lingering polarization after the March 2008 crisis and highly politicized journalistic practices continue to fuel misgivings about the selective application of justice.

However, the few cases recorded so far provide contrary evidence. The most recent and prominent defamation case was filed in April 2009 by the son of former President Robert Kocharyan against the pro-opposition Haikakan Zhamanak Daily, which ran an article claiming Kocharyan’s son was arrested by police in Dubai after provoking a drunken fight. The court awarded the Kocharyan family 3.6 million AMD (US$ 9,600), substantially less than the initially demanded 16 million AMD (US$ 43,000).

A low level of resort to civil law, as well as concerns about selectiveness, were further stressed in the case of Zaruhi Postanjyan, an MP from the opposition Heritage Party, who demanded a criminal case against the pro-government Azatamtutiun newspaper, which published offensive content about the deputy. The investigation was quashed by the police and prosecutors. But Postanjyan successfully sought reopening of the case in March 2010.

Under the widely acknowledged European Court of Human Rights (ECHR) case law – which Armenia has made part of its domestic legislation and jurisprudence – freedom of expression applies not only to information or ideas that are favorably received, but also to those that “offend, shock or disturb”. Given the poor record of application of the ECHR case law in courts and political polarization, suspicion about differing perceptions and interpretations by courts nevertheless seems relevant.

In this context, out of court settlement and self-regulation are cited as a possible alternative, to avoid chilling effects. However, the effort in this direction made by the Yerevan Press Club, a leading media NGO, and the Media Ethics Observatory it has set up to monitor compliance still maintains a low profile, and is not viewed as a viable alternative. While the amendments do promise to reshape public relations, they also stress the relevance of developing higher standards of responsible journalism for Armenia’s sensitive political environment.